Wyman v. Hardwick

Ellison, J. This proceeding was begun by a bill for injunction to restrain defendants from enforcing an execution against plaintiff’s land lying in Clay county. There was a temporary order granted. It was after-wards made perpetual, and defendants appeal. The facts are substantially these: Brankin Faucett in his lifetime brought suit in the circuit court of Clay county on a promissory note executed by plaintiff and her husband for the sum of $300. The petition in that case charged that this plaintiff was a married woman, that she was the owner, to her separate use and as her separate property, of certain real estate therein described, and that by signing said note she charged such real estate therewith. The petition contained the usual prayer in such cases, asking that said real estate be charged with a lien for the amount of the note and interest, etc. Before the case was tried, plaintiff’s husband, A. W. Wyman, died, leaving plaintiff a feme sole. It seems that as a matter of fact the real estate was not Mrs. Wyman’s separate property, but was only her general property, held by an ordinary deed. But, notwithstanding this, it seems [624] to have been the contention of Eancett, the plaintiff in that case, that notwithstanding the real estate was not her separate property and, therefore, not liable to have a lien established directly against it, yet, since the husband had died, Mrs. Wyman was liable on the note as a feme sole, and that the court should render a general personal judgment against her. After considerable delay the court (Judge Dunn) adopted this view; or, at least, rendered a general personal judgment in that case against this plaintiff, the defendant therein. On this judgment a general execution was issued and levied upon plaintiff’s lands. It is this execution that plaintiff seeks to enjoin. Her reasons for the injunction are these. She says in substance that in the first place the note being executed by her while a feme covert, and not being possessed of any separate property, was a nullity; that the death of her husband afterwards did not impart any vitality to the note, and that no judgment could be lawfully rendered against her. And as a reason for not appealing that case, or taking out a writ of error thereon, she says, substantially, that the cause had been argued before the trial court and taken under advisement; that such court frequently took causes under advisement for more than one term, but that in all such cases it was the invariable rule and practice of said court when about to dispose of such a cause to notify the attorneys for both parties that judgment would then be rendered and entered of record; that her attorney, an old practitioner in said court and acquainted with such rule and practice, relied upon its being followed in that case, but that the court, in this instance, departed from such rule and rendered the personal judgment aforesaid against this plaintiff without notifying her or her counsel; that, at the moment of announcing and entering the judgment, her counsel, though in constant and regular attendance at [625] court, had stepped out of the courtroom for five or ten minutes on some matter of necessity, and never knew anything of the judgment until after the adjournment Of court for the term; that in consequence he could 71 ot file a motion for a new trial or in arrest of judgment, or take a bill of exceptions. In passing on the legal merits of plaintiff’s case we will assume in her behalf that the personal judgment should not have been rendered against her on a petition which declared on a note executed by her when feme covert, and wherein it was sought to charge her real estate as being her separate property; notwithstanding that at the date of the judgment she had become a feme sole by the death of her husband. We shall also assume, in her behalf, that the court had the rule and practice contended for by her, and that, in this instance, the court departed from such rule '.without notice to plaintiff or her counsel, while she and her counsel were absent from the courtroom; and that neither of them knew the judgment was rendered until the term was adjourned, and thereby were prevented from taking steps necessary to appeal the case or to preserve a bill of exceptions. When a party seeks relief by injunction from a judgment which has been rendered against him in a court of general and competent jurisdiction, it should appear that he could not have remedied the ills of which he complains by the ordinary legal procedure, as by appeal or writ of error. 1 Black on Judgments, secs. 361, 363; Hilliard on Injunctions, 256, 257; 1 High on Injunctions, secs. 165, 173, 174. The right to a writ of error is not per se a bar to an injunction against a judgment or execution (Parker v. Judges, 12 Wheat. 561), for such writ may not, in some cases cannot, embrace the causes on which the .equities [626] have arisen. But, if the writ is of sufficient efficacy to cure the complaint made in a given case, it should not be displaced by an injunction. But plaintiff contends that she could not appeal since she had no opportunity of taking a bill of exceptions or filing a motion for a new trial. And that, while she could have sued out a writ of error, yet such writ would not have sufficed for her relief, since only the record proper could have been reviewed on such writ, in an appellate tribunal. Conceding these propositions (except the efficacy of the writ) we are left to ascertain what relief she could have had from the showing made by the record proper. The petition and the judgment in that case were a part of the record proper and would, therefore, have been brought up by a writ of error. From these, all the facts necessary to entitle Mrs. Wyman to relief in an appellate court appear in plain terms. The petition itself, containing the complaint against her, shows that at the time she executed the note she was a married woman and it seeks only a special judgment against property described and therein alleged to be her separate estate. In short, the petition states a case in which there could not, properly, be a general judgment rendered against her. Therefore, when the judgment in the record discloses itself to be a general personal judgment, it is made plain that it is not supported by the petition and would, in consequence, be set aside by a revisory tribunal. Plaintiff, therefore, had a full and adequate remedy in the ordinary course of legal procedure, and must fail in her injunction proceeding. The judgment will be reversed and the bill dismissed. All concur.